Speaking Power to Truth, or, The Banality of Torture (Paul W. Kahn)

I have been writing about torture for the last decade. Does the recently released summary of the Senate report reveal anything that requires reconsideration of my earlier work? Surely, it is not news that the Bush administration, particularly in the first term, pursued a practice of torture. Nor is it news that the practice was not successful. After all, the turn to torture was puzzling partly because we have long known that it is not an effective means of obtaining information. In fact, torture is best understood as a practice not of inquiry but of communication.

Ever since the “War on Terror” began over a decade ago, but especially in recent months after the release of the Senate Report on Torture in December, America and her allies have been engaged in often heated debate and soul-searching over the practice of torture. Following important discussions on the issue at this year’s Society of Christian Ethics annual meeting, Political Theology Today has invited a range of scholars in the fields of political theology and Christian Ethics to explore the issue. We begin this week with a reflection by Paul Kahn. See the other posts in the series here.

I have been writing about torture for the last decade. Does the recently released summary of the Senate report reveal anything that requires reconsideration of my earlier work?

Surely, it is not news that the Bush administration, particularly in the first term, pursued a practice of torture. Nor is it news that the practice was not successful. After all, the turn to torture was puzzling partly because we have long known that it is not an effective means of obtaining information.

In fact, torture is best understood as a practice not of inquiry but of communication. The interesting question is not what we learned, but what we were saying. That message was then and remains now controversial.

Torture communicates an idea of power unbound by law. Torture speaks from the perspective of the exception, and the meaning of the exception is always that of an ultimate value making an infinite demand. Such a demand cannot be limited by law. The exception is not necessarily an actual state of existential threat – although it may be that. It is rather an imagined perspective on the whole of the political order. We imagine that exterior from our position within a particular community. Thus, the exception is the act outside of law but for the sake of law. The exception grounds the normal.

This double perspective allows us to make a statement about the ultimate value of the state – our state, not politics in general. We cannot do that as long as we occupy a role or apply a rule within the political order. Thus, the exception is not just the modern analogue to the miracle as a free act unbound by law; it expresses a Godlike point of view, for the simultaneity of the interior and exterior perspectives expresses God’s relationship to creation. The exception is a way of imagining politics as a product of our freedom. After 9/11, we endued torture with the imaginative structure of the exception.

My own work on torture has explored this expressive dimension and has criticized liberal theory for its failure to move beyond legality. Torture is and should be illegal, but that proposition tells us very little about why torture and terror appear as a matched pair: wherever terror appears, torture is not likely to be far behind. Both are a politics of violence beyond law. We don’t eliminate either by passing laws. None of this offered a justification or excuse for torture. Rather, it suggests a need to take up a deeper debate about the role of violence in the construction of the national narrative and the place the state occupies in our understanding of our own identities.

The Senate summary does not offer an alternative theory of torture, but it does offer a picture of how we torture. It conveys a sense of the banality of that practice. This is not Arendt’s concept of the banality of evil. Eichmann, after all, claimed for himself the virtue of following the law, while everyone recognizes that our torture practices do not to sit easily within the law. The banality that emerges from the summary points to a character type far less bureaucratic than Eichmann. Indeed, the most surprising revelation is the lack of professionalism of those involved and the corresponding willful ignoring of the professional interrogators. The torturers were not bureaucrats operating with a professional competence; neither were they professional soldiers. They seem more often to be amateurs who had failed at other endeavors.

Reading the Report put me in the mind of David Luban’s work on a “torture culture.” He asks who we expect to step up for this kind of work. We are not going to create a torture academy in which we teach the torturer the political virtues of self-sacrifice and teamwork. Torture is dirty work, and inevitably such work is done by those who already lean in this direction. Recent work on the Third Reich has argued that “ordinary people” will indeed take up genocidal programs, but I suspect that requires the institutionalization and generalization of such programs. What happens to ordinary people when everyone around them loses their powers of moral evaluation is quite a different question from that of who will do the dirty work in secret at a moment when the public norms still prohibit torture.

If the torturer is the banal thug, where does this leave theorizing about the symbolic dimension of torture? Has the Senate told us that torture is properly seen as terrible people doing awful things, in which case the proper response is criminal prosecution? I have never opposed prosecution, but neither do I think that the end of the matter. Theory cannot so easily be defeated by practice, banal as that practice might be.

Theory and practice are always somewhat mismatched. Liberal citizens are not as liberal as liberal theory requires; citizen deliberation is never as much in the public interest as deliberative theory suggests. The same is true when we turn from politics to religion. Parishioners are not theologians. They are motivated by a range of interests as they participate in the rituals and beliefs of faith. They do not try to resolve competing theories of the sacraments or of the Trinity. This mismatch does not mean that the theologians are talking of nothing or that the parishioners are missing the point.

None of this is a problem for normative theories. Such theories assume that practice falls short of what it “should” be. But work in the symbolic nature of political practices is not generally normative. I am not trying to say what politics should be, but rather what it is. We occupy a political world of meaning, the exploration of which requires a kind of political phenomenology. Yet, in what sense are we describing a phenomenon when we put forth theories not used by those actually participating in the phenomenon? There are two answers to this question, which I will call the ontic and the ontological. The former is true, but unsatisfactory. The latter is satisfactory, but complex.

The ontic account notes that politics always involves both actors and spectators. Political acts are not only done for the community, but before the community. To explore the meaning of torture is not to give a psychological account of torturers. Rather, it is to examine the way in which torture figures in the political imaginary of the entire community. The political theorist wants to explore how we talk about torture; the lawyer wants to know who is responsible. These are not the same inquiry.

The meaning of torture, then, is not the same as the intentions of the torturers. We may well recruit thugs as our torturers, but that does not make the practice one of thuggery. Indeed, the same could be said of the military. Some of those who join the military may have a peculiar penchant for violence. Their reasons for joining may indeed sound banal. The psychology of the soldier is an important subject of inquiry, but it is not the same question as that of how violence sustains and is sustained by the political imaginary.

The ontological account situates this inquiry in a larger theory of the nature of the human world of meaning. No proposition – no experience – ever stands by itself. We never have a sentence without an entire language. We don’t have a political practice without the entirety of history – past and future. We are always already situated in this symbolic world, and our practices make sense to us because they are so situated. Indeed, they make sense even before we articulate that sense – we operate in the world with a certain “know how.” Deliberation, for this reason, is a matter not of deciding on a clean slate but of interpreting practices, commitments, and beliefs. We deliberate until we are persuaded; persuasion always links discovery and decision.

Because the symbolic order has no single structure, there are always an indefinite number of possible interpretations. A symbolic order is more like a field of forces than a logical order. It is a constantly changing set of relationships: analogies, exemplars, juxtapositions, and distinctions. When we interpret a practice or belief, we explore these possible connections; we come to see them one way rather than another. That way of seeing can be quite independent of what any actor actually thought at the time. For this reason, the actor does not control the meaning of his actions. Indeed, he may come to change his mind about their meaning. He may be persuaded by others who see differently.

Theory is not inventing; it is interpreting, but every interpretation puts at issue an entire world. Interpreting, we are trying to persuade even as we open ourselves to persuasion. A symbolic order is not one thing or another. There is no truth of the matter, whether we are interpreting a painting, a law, or a practice. Interpretive disagreement characterizes politics: where one person sees a family in need, another sees a welfare system undermining an ethic of work; where one person sees foreign aid, another sees neo-colonialism. Where our political disputes will crystallize is quite contingent, for it is not the case that some things are, by nature, more political than others. Anything at all – guns, education, energy, religion, the environment – can become the subject of a political dispute.

Thus it is not a surprise that torture can become the object of partisan debate. This is not because torture is controversial or important but because our practice of partisanship has become so deep. Neither side in these debates is open to being persuaded by the other, because the arguments are not over what they seem. Torture, like guns or climate change, is a proxy for a deeper controversy about who belongs and who does not, about how to read and understand the American political community, about where and how to see the exception that grounds the norm. This battle – America’s culture war – is being fought on multiple fronts. It will remain long after we forget about torture in the Bush administration.

The image at the top of this article is a photo of one of the plaques at the Hoa Lo Prison in Hanoi, Vietnam (aka, the “Hanoi Hilton”). The photo was taken by Dennis Jarvis on January 31, 2009, and is available through a Creative Commons license.

Paul W. Kahn is Robert W. Winner Professor of Law and the Humanities and director of the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School. He is author of many books including “Sacred Violence” and, most recently, “Finding Ourselves at the Movies.”

2 thoughts on “Speaking Power to Truth, or, The Banality of Torture (Paul W. Kahn)”

I could not find any details about the artist, but this is a public-domain photograph of one of the plaques at the Hoa Lo Prison in Hanoi, Vietnam (aka “the Hanoi Hilton”), taken by Dennis Jarvis. I’ll be sure to add a note to that effect.